[00:00:42] Speaker 03:
The next case is Mark Shapiro versus the Social Security Administration 2014 31 13.

[00:00:48] Speaker 03:
Ms.

[00:00:48] Speaker 03:
Brownell, when you are ready.

[00:01:40] Speaker 00:
the court.

[00:01:41] Speaker 00:
My name is Bonnie Brownell.

[00:01:42] Speaker 00:
I'm with the law firm, the Brownell law firm.

[00:01:45] Speaker 00:
I'm here on behalf of my client, the petitioner, Judge Mark Shapiro, and I thank you for the opportunity to plead his case.

[00:01:52] Speaker 00:
It is our position that the Social Security Administration charged our client with mismanaging the cases to which he was assigned by failing to provide timely hearings and decisions in the cases to which he was assigned.

[00:02:05] Speaker 00:
The agency explicitly charged that this failure constituted unacceptable performance

[00:02:10] Speaker 00:
which in turn constituted good cause for removal.

[00:02:13] Speaker 00:
The agency did not prove this charge, and the agency's failure to prove this charge is set forth in the complaint, if not before this court.

[00:02:22] Speaker 00:
Likewise, we assert that the SSA did not charge that Judge Shapiro's unacceptable performance was based on his comparative productivity to his peers.

[00:02:32] Speaker 00:
The production totals set forth

[00:02:35] Speaker 00:
as two of the three proofs in specification three are set forth to prove the charge of unacceptable performance, which is the alleged failure to provide timely hearings and decisions in the cases to which he was assigned.

[00:02:48] Speaker 00:
The assertion is that a second and independent charge was invented out of whole cloth for the first time by Judge Smith and set forth for the first time in his decision below.

[00:02:59] Speaker 03:
But didn't he handle and decide many fewer cases than other judges who constituted the standard of performance?

[00:03:13] Speaker 00:
That is true, Your Honor.

[00:03:14] Speaker 00:
There is an objective statement that he performed, but that's not the good cause that the agency offered for his removal.

[00:03:22] Speaker 00:
The agency offered that the good cause for his removal was that he mismanaged the cases to which he was assigned.

[00:03:28] Speaker 00:
That's a wholly different charge.

[00:03:30] Speaker 00:
And this is about did they charge him with the good cause and the unacceptable performance for which they charged him.

[00:03:38] Speaker 00:
And our answer is they did not.

[00:03:39] Speaker 00:
In fact, the agency did not mention productivity as an independent and a dispositive reason for his removal until the judge created that in his opinion.

[00:03:50] Speaker 02:
It seems to me that's exactly what specification number three charged.

[00:03:54] Speaker 02:
It says responded and not acceptably manages cases, and then it provides examples for three different fiscal years comparing his productivity to other judges' productivity.

[00:04:05] Speaker 02:
How could you not read that as a charge of his productivity is not up to the standards?

[00:04:10] Speaker 00:
Your Honor, charge one has to be read as it is currently structured.

[00:04:15] Speaker 00:
and charge one, the first two sentences of charge one, or we are charging him with unacceptable performance, and that unacceptable performance is untimely, untimeliness.

[00:04:25] Speaker 00:
Now, the number of production of cases.

[00:04:27] Speaker 02:
You're trying to read this charge in a very technical way.

[00:04:31] Speaker 02:
I mean, 7513 doesn't apply here, right?

[00:04:35] Speaker 00:
Absolutely not.

[00:04:36] Speaker 02:
So all that agency has to do is show good cause.

[00:04:39] Speaker 02:
And they have to get him notice of what he's being charged with, of course.

[00:04:43] Speaker 02:
But when you see specification number three, and all it does is list examples under the language that he then acceptably manages cases because his production is less than others, how is he not on notice what he's being charged with?

[00:04:59] Speaker 00:
The regulations, the case law in existence that's applicable to cases of original jurisdiction before the MSPB and due process require that Judge Shapiro is apprised of the

[00:05:11] Speaker 00:
unacceptable performance for which he was charged.

[00:05:13] Speaker 00:
And that unacceptable performance was that he did not issue decisions or hold hearings in a timely manner.

[00:05:23] Speaker 00:
The fact that he has less productivity than others is an indication of him not processing his cases, but it is not dispositive proof standing alone.

[00:05:36] Speaker 00:
Judge Bice is

[00:05:38] Speaker 00:
presented in the respondent's brief, who is the proposing official from the agency here, indicates that his low productivity is an indication that he's not performing his duties, or that he is neglecting his duties.

[00:05:54] Speaker 00:
We went through each and every case that the agency indicated was illustrative.

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And we showed to Judge Smith's satisfaction, and the administrative law judge hearing this

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that Judge Smith wasn't dithering.

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He wasn't neglecting his duties.

[00:06:09] Speaker 00:
What he was doing was developing the record in a manner that he thought was appropriate.

[00:06:14] Speaker 00:
He was going out and getting medical records.

[00:06:16] Speaker 00:
He was working with support staff that didn't always do what he asked them to do, and Judge Smith said that more than a third of the processing time attributed to the longevity of his

[00:06:29] Speaker 00:
of his case processing time was due to his support staff.

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He also indicated that it was due to the development of the record.

[00:06:35] Speaker 00:
We also established that the case processing times that the agency presented contained mathematical errors.

[00:06:40] Speaker 00:
We presented all of that to Judge Smith's satisfaction.

[00:06:44] Speaker 00:
The bottom line is Judge Smith agreed with us that the agency did not prove that Judge Smith took too long to decide his cases, that his processing times were unacceptable.

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The agency is not arguing here that there is a production quota.

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In fact, they cannot argue that there's a production quota.

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And what Judge Smith did is try to argue indirectly or conclude indirectly what the agency can argue directly.

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If you conclude in this case that Judge Smith should be removed because he didn't produce a certain number of cases, you are enforcing a quota.

[00:07:17] Speaker 00:
Likewise, under the Goodman decision, you can discuss productivity.

[00:07:22] Speaker 00:
and we can look at relative productivity.

[00:07:25] Speaker 00:
But in Goodman, it says that you have to have a meaningful comparison.

[00:07:29] Speaker 00:
The statistical analysis in this case that determines in which Judge Smith concluded that Judge Shapiro's productivity was too low was a situation in which the court clearly acknowledged that there had to be a meaningful comparison of Judge Shapiro's cases and caseloads.

[00:07:48] Speaker 00:
And our argument in this case is that you cannot take an objective number in this case and say that it's too low.

[00:07:54] Speaker 02:
But the evidence goes far beyond that.

[00:07:56] Speaker 02:
There is testimony from the agency that his caseload was looked at in detail, and it wasn't found to be any different in kind or degree or difficulty than other ALJs.

[00:08:10] Speaker 02:
So they did do that further adjustment beyond just the mere numbers.

[00:08:15] Speaker 00:
Your Honor, the suggestion that the number of cases he produces is indicative of his failure to perform his job is dependent upon this inference that the agency is trying to draw that he didn't properly manage his cases.

[00:08:29] Speaker 00:
And that's why they charge it that way.

[00:08:30] Speaker 02:
How else would they... I mean, you say they can't have a quota, and I understand that there's some settlement out there that says they can't have a quota, but they can certainly expect all their ALJs to perform at a same or similar rate, can't they?

[00:08:44] Speaker 00:
Not if they don't assign them enough cases.

[00:08:46] Speaker 00:
Not if they don't provide them with the opportunity.

[00:08:48] Speaker 02:
Why would they assign him more cases if he can't get through any of them?

[00:08:51] Speaker 00:
Well, they charged him from 2008 to 2010.

[00:08:53] Speaker 02:
I know, but this went on for 15 years.

[00:08:56] Speaker 00:
That's outside the period for which they charged him.

[00:09:00] Speaker 00:
They're charging him for not producing cases at a certain level.

[00:09:03] Speaker 00:
They're not assigning him the cases that he didn't produce.

[00:09:05] Speaker 02:
So you think because he couldn't perform for 15 years,

[00:09:10] Speaker 02:
that in these latter three years, they should have assigned him six or seven hundred cases so that he could fail miserably before he could be removed?

[00:09:18] Speaker 00:
Your Honor, the court in this case has to conclude that there is a reasonable comparison between Judge Shapiro's caseload and his colleagues before they can adopt some sort of statistical inference

[00:09:33] Speaker 00:
that his numbers are too low.

[00:09:35] Speaker 02:
But the ALJ found that there was.

[00:09:37] Speaker 00:
Well, I asked you what number did the ALJ find was too low.

[00:09:41] Speaker 00:
The ALJ said by speculation based on the status quo in which Judge Shapiro could not produce over a certain number of cases, the judge said that the reason he couldn't produce over that number of cases was because his support staff that the agency controlled

[00:10:00] Speaker 00:
was responsible for a large percentage of his case processing time.

[00:10:05] Speaker 00:
So if you take that away and you give him the staff that would have been able to produce at the levels that he required, how many cases could he have produced?

[00:10:13] Speaker 00:
He says he could have produced 300.

[00:10:14] Speaker 00:
Judge Smith actually understates that and says 200.

[00:10:17] Speaker 00:
He says he thinks he could produce 300, excuse me.

[00:10:21] Speaker 00:
How many could he produce if he had appropriate support staff?

[00:10:24] Speaker 00:
400.

[00:10:25] Speaker 00:
Judge Bice says she doesn't know whether she would have fired him for 300 case production.

[00:10:30] Speaker 00:
All we know is that the reason his case processing time was longer than others is because he didn't have the support staff that he required.

[00:10:41] Speaker 00:
And if they had fixed that, if the agency that was responsible for his support staff had fixed that, and everyone acknowledges he wasn't responsible for that, he might have been able to produce a lot more.

[00:10:51] Speaker 00:
The concept of a comparative analysis is in Goodman, and in Goodman,

[00:10:57] Speaker 00:
The cases and the caseloads have to be comparative, and that simply is not the case here.

[00:11:03] Speaker 00:
We think that this case is about charging, and we think this case is about Goodman and the productivity issues.

[00:11:09] Speaker 00:
And in this case, there is no situation in which the government proved the case that it charged.

[00:11:22] Speaker 00:
It is undisputed in this case that the agency must set forth a charge and prove it.

[00:11:27] Speaker 00:
The agency agrees with this assertion.

[00:11:30] Speaker 00:
It states that without question, a presiding official may not split a single charge into several charges and then sustain one of the newly formulated charges.

[00:11:39] Speaker 00:
And when a charge is labeled, the label and not something else must be proven.

[00:11:43] Speaker 00:
That's what the SSA asserts in this case.

[00:11:47] Speaker 00:
Also, under the cases that involve original jurisdiction, once a charge is made, it is the agency that bears the burden of proof.

[00:11:54] Speaker 00:
If the charge is found supported by a preponderant evidence,

[00:11:57] Speaker 00:
It must then be decided whether the conduct in question is good cause to suspend or take action against the petitioner.

[00:12:06] Speaker 00:
We note that the respondent's brief appears to suggest that if Judge Shapiro could have guessed during the course of his hearing that the ALJ was going to substantially alter the gravamen of the charge after the record closed, that he should have anticipated such and altered his defensive strategy accordingly.

[00:12:23] Speaker 00:
This is simply not consistent with basic principles

[00:12:27] Speaker 00:
of due process and federal employment law.

[00:12:30] Speaker 03:
Ms.

[00:12:30] Speaker 03:
Brownell, you're into your rebuttal time.

[00:12:33] Speaker 03:
You can continue or you can save it.

[00:12:35] Speaker 00:
I would like to preserve my rebuttal time.

[00:12:36] Speaker 00:
Thank you, Your Honor.

[00:12:38] Speaker 03:
Mr. Bruston.

[00:12:48] Speaker 01:
Good morning, Your Honors.

[00:12:49] Speaker 01:
May it please the Court.

[00:12:50] Speaker 01:
I'd like to start with the basic premise of the petitioner's case here, which is that

[00:12:57] Speaker 01:
this court should parse the exact words of the charge and the specifications and hold them solely to the wording that's used.

[00:13:06] Speaker 01:
And if they are able to demonstrate in any manner that something outside of the exact wording that's used in the complaint was the formation, the basis of the removal,

[00:13:18] Speaker 01:
that they should be overturned.

[00:13:20] Speaker 03:
We have to look at the complaints, don't we?

[00:13:21] Speaker 03:
Isn't that a matter of due process?

[00:13:23] Speaker 01:
You do.

[00:13:23] Speaker 01:
And what I think the problem is, it's a many-layer problem.

[00:13:28] Speaker 01:
First, they're seeking to mischaracterize what the charge and the specification are.

[00:13:32] Speaker 01:
The specification very clearly lays out that the number of dispositions that he issued in 2008, 2009, and 2010, and the number of cases he scheduled for hearing in those years was far below that of his peers.

[00:13:44] Speaker 01:
So there's the argument that,

[00:13:47] Speaker 01:
Somehow Mr. Shapiro was unaware that his productivity was really the gravamen of Specification 3 is really a spurious argument.

[00:13:54] Speaker 03:
That's different from the timing point, which he found was not met.

[00:13:59] Speaker 01:
Correct.

[00:13:59] Speaker 01:
Specifications 1 and 2 were very clearly that he decided his cases too slowly, scheduled his hearings too slowly.

[00:14:05] Speaker 01:
Specification 3 is that he did not acceptably manage his cases in the following ways, two of which were that he did not issue dispositions in a sufficient number and did not schedule hearings in a sufficient number.

[00:14:17] Speaker 01:
But what I think is important to step back from is that the requirement that they be tied in a mechanistic manner, as agencies are in 7512 actions, where they really are limited to what's charged in the notice of proposed action and cannot go outside that, is really an in-app mechanism for an ALJ removal, which is governed by 7521.

[00:14:39] Speaker 01:
The only statute that governs this, 7521, says that an ALJ can only be removed after good cause is found.

[00:14:47] Speaker 01:
the regulations that underlie 7512 and 7521 speak to the different manner in which those removal actions can be taken.

[00:14:55] Speaker 01:
7512 actions really do limit the agency to what they have charged, and there are greater strictures on the agency.

[00:15:03] Speaker 01:
With ALJs, there was an understanding that there aren't going to be the same level of notice and due care required because

[00:15:15] Speaker 01:
To get a good cause finding, you have to file a complaint with the MSPB.

[00:15:19] Speaker 01:
There's a discovery process.

[00:15:20] Speaker 01:
There's an answer.

[00:15:22] Speaker 01:
There's going to be a hearing.

[00:15:23] Speaker 01:
In this case, there was a hearing.

[00:15:24] Speaker 01:
They got the agency put on its case in chief.

[00:15:28] Speaker 01:
The ALJ then adjourned the hearing and permitted Mr. Shapiro to take additional evidence.

[00:15:33] Speaker 01:
He was then permitted to put on his evidence.

[00:15:35] Speaker 01:
And there had to be an initial decision and a review all before the proposed action could be taken.

[00:15:42] Speaker 01:
So the idea that

[00:15:44] Speaker 01:
if in fact the court were to agree with Mr. Shapiro's characterization of the charge, that it all had to do with timeliness and that even the productivity pieces somehow relate to timeliness, the government would submit that under 7521, as long as he has notice of the actions that are alleged to support the conduct, in this case, unacceptable performance, that that's acceptable.

[00:16:10] Speaker 01:
In Brennan, which I believe is the only federal circuit case that deals with

[00:16:14] Speaker 01:
an ALJ who was sought to be removed for productivity.

[00:16:17] Speaker 01:
The court held that, and this was in 1982, all that needs to be put in the complaint is enough to put the ALJ on notice for what actions are being alleged so that it can respond to them or justify the actions being alleged.

[00:16:30] Speaker 01:
I think there's no dispute here that Mr. Shapiro was well aware that his productivity was at issue.

[00:16:36] Speaker 01:
In page 29 of our brief, we cite several excerpts from the transcript in which he was asked specifically what he understood specification three to be.

[00:16:46] Speaker 01:
And he said, my understanding is that they're saying that since I didn't produce enough decisions, I didn't produce very many decisions and I was taking too long.

[00:16:55] Speaker 01:
So it's not that he believed it was all a question of timeliness and somehow the productivity supported that charge.

[00:17:01] Speaker 01:
And I think the text of specification three, which is at J242 and 243 supports that.

[00:17:06] Speaker 03:
Ms.

[00:17:06] Speaker 03:
Brownell said he didn't get enough support.

[00:17:10] Speaker 01:
Well, the supporter cases, I'm sorry.

[00:17:14] Speaker 01:
Staff support.

[00:17:15] Speaker 01:
Staff support.

[00:17:17] Speaker 01:
What A.L.J.

[00:17:18] Speaker 01:
Smith found in applying the Goodman construct, the apples to apples comparison, to Mr. Shapiro's timeliness argument, or his defense of the argument, was that he believed, A.L.J.

[00:17:29] Speaker 01:
Smith believed, that they needed to demonstrate

[00:17:32] Speaker 01:
in order to show that his timeliness wasn't somehow caused by the staff, that he had the same support staff.

[00:17:39] Speaker 01:
The problem is there's no evidence that the support staff impacted his inability to decide a sufficient number of cases or decide a sufficient number of hearings.

[00:17:48] Speaker 01:
Once the agency has proven its allegations by preponderant evidence, the burden shifts to Mr. Shapiro not to simply speculate that there's another issue that could be out there, but to produce evidence.

[00:17:59] Speaker 01:
Here, he was given numerous counseling sessions, the purpose of which were to identify constraints upon his productivity.

[00:18:06] Speaker 01:
He never once said, you know, that support staff's really just keeping me from being able to decide my cases.

[00:18:12] Speaker 01:
And what ALJ Smith found was that a prudent ALJ, and the board agreed with this, a prudent ALJ recognizing, as perhaps he did, that his staff was slowing him down, would go ask for more cases.

[00:18:24] Speaker 01:
If truly the delay was not his performance, but that of his staff,

[00:18:28] Speaker 01:
when the case was outside of his control, well then he should have bumped up his docket.

[00:18:33] Speaker 01:
He should have said, you know what, I need a thousand cases on my docket because then I can reach the level of productivity that is expected of me.

[00:18:40] Speaker 01:
He certainly was aware that the agency found his productivity inadequate.

[00:18:44] Speaker 01:
And in fact, after he received these counseling sessions, his productivity declined.

[00:18:49] Speaker 01:
So if in fact the staff constraints upon him were causing his low productivity,

[00:18:54] Speaker 01:
it would have been incumbent upon him.

[00:18:56] Speaker 01:
You know, he's not a factory worker.

[00:18:57] Speaker 01:
He is a highly paid, highly educated judge.

[00:19:00] Speaker 01:
He's amongst the most highly well paid employees of the agency.

[00:19:04] Speaker 01:
He can't simply sit back and in the face of being told that he's not producing this efficiently.

[00:19:10] Speaker 02:
Apparently he could for 15 years.

[00:19:11] Speaker 02:
Well, right.

[00:19:12] Speaker 02:
Why did it take so long for them to correct this performance?

[00:19:16] Speaker 01:
My understanding was that there was a concern in the agency after the Goodman decision that perhaps

[00:19:22] Speaker 01:
the agency could not, in fact, remove ALJs for poor products.

[00:19:26] Speaker 02:
Do you think Goodman is right?

[00:19:28] Speaker 02:
I mean, it's a poor decision.

[00:19:29] Speaker 02:
We're not really bound by it.

[00:19:30] Speaker 02:
Do you think that it's a little too stringent on how you prove lack of production or efficiency?

[00:19:36] Speaker 01:
I think it is.

[00:19:37] Speaker 01:
I think it's both too constrictive with productivity, although I think that at least with productivity, there is a more objective level that you can view someone's performance.

[00:19:52] Speaker 01:
I think A.L.J.

[00:19:53] Speaker 01:
Smith's application of Goodman to the timeliness piece was really inappropriate and far too strict.

[00:19:58] Speaker 01:
The SSA is never going to say cases should take X number of days, and if you go over 35, then you're being too slow.

[00:20:07] Speaker 02:
And I think, why not?

[00:20:09] Speaker 02:
I mean, the board does.

[00:20:10] Speaker 02:
The MSPB A.J., the administrative judges at the MSPB, have very strict time requirements and processing requirements.

[00:20:17] Speaker 02:
And my understanding is that their performance is rated on this.

[00:20:20] Speaker 02:
time requirements, why can't SSA do that?

[00:20:24] Speaker 01:
I believe it's because under the APA, there's a concern that doing that would interfere with the judicial independence.

[00:20:31] Speaker 01:
And there is a recognition that there is a, within the cases that the ALJs at SSA handle, there are different types of cases.

[00:20:38] Speaker 01:
And so perhaps you could come up with some sort of structure where different types of cases have different time periods.

[00:20:44] Speaker 01:
But there's an understanding that certain cases are perhaps shut and closed, and other ones require a lot more factual development.

[00:20:50] Speaker 01:
and the agency has shied away from doing that.

[00:20:53] Speaker 01:
But with respect to productivity, at least under Goodman, there are objective factors once it's proven that there's an apples to apples comparison.

[00:21:01] Speaker 01:
So I think it's a little bit easier.

[00:21:03] Speaker 01:
The fact is I think A.L.J.

[00:21:05] Speaker 01:
Smith grappled on to Goodman because it is really the only precedent out there he could point to to guide his evaluation of the evidence.

[00:21:14] Speaker 01:
And I think his application of it to the timeliness piece

[00:21:17] Speaker 01:
resulted in an errant decision on the time of this piece, though we're obviously not contesting that in this case.

[00:21:25] Speaker 01:
Unless your honors have any more questions, we would ask the court to affirm the decision of the MSV.

[00:21:30] Speaker 03:
Thank you, Mr. Bruskin.

[00:21:32] Speaker 03:
Ms.

[00:21:32] Speaker 03:
Brownell has a little more than four minutes for bottle time.

[00:21:35] Speaker 03:
Thank you, Your Honor.

[00:21:42] Speaker 00:
Judge Shapiro is being removed for unacceptable performance of his cases.

[00:21:46] Speaker 00:
Apparently, it's because he is producing too few at this point in time, according to Judge Smith.

[00:21:53] Speaker 00:
How does he produce more cases?

[00:21:55] Speaker 00:
He produces more cases by being faster.

[00:21:58] Speaker 00:
We proved that there are not any issues in the illustrative cases and in many of the other cases that the agency presented that indicated that he's too slow.

[00:22:07] Speaker 00:
There were third factors that suggested as to his speed, and so there really isn't a basis for saying he should be faster.

[00:22:15] Speaker 00:
because his staff is too slow.

[00:22:17] Speaker 00:
He's not responsible for his staff.

[00:22:19] Speaker 00:
I don't mean to say his staff is too slow.

[00:22:20] Speaker 00:
His staff wasn't responsive in ways that he needed.

[00:22:23] Speaker 00:
And the agency is responsible for the staff.

[00:22:26] Speaker 00:
He had difficulty getting medical records in New York City because he wanted to develop the record.

[00:22:30] Speaker 00:
This man is not sitting around doing absolutely nothing.

[00:22:32] Speaker 00:
He's working hard to develop the record.

[00:22:34] Speaker 00:
And the reason the agency does not provide a timeline

[00:22:38] Speaker 00:
for when a case does not provide productivity requirements is because their emphasis is stated in this complaint is what is it that Judge Shapiro needs to do to do his job and get these cases adjudicated as soon as possible.

[00:22:54] Speaker 00:
Now, there's only two things he could do to produce more cases.

[00:22:58] Speaker 00:
One is to be faster.

[00:23:00] Speaker 00:
Judge Smith said that's not an issue.

[00:23:02] Speaker 00:
The agency didn't prove that he's too slow, so he couldn't necessarily be faster.

[00:23:06] Speaker 02:
Just because they didn't prove he was too slow doesn't mean he wasn't too slow.

[00:23:11] Speaker 02:
It just meant they didn't meet that burden of proof.

[00:23:14] Speaker 02:
What other explanation is it that he is producing a fraction of the amount of the cases that everybody else in this office does?

[00:23:22] Speaker 00:
He is producing cases that he's going in and he's developing the record.

[00:23:26] Speaker 00:
He's putting out certain kinds of requirements on his support staff.

[00:23:30] Speaker 00:
that they're not meeting in a timely manner.

[00:23:32] Speaker 00:
They're miscalculating the length of time that it takes.

[00:23:34] Speaker 02:
So where is the evidence in the record that he made requests for additional support staff or complained about his support staff or that?

[00:23:42] Speaker 00:
I don't have it right at my tip, but I can tell you that according to the respondent's brief, the performance meetings were designed to determine whether there were causative factors that interfered

[00:23:57] Speaker 00:
with his ability to produce timely case processing times.

[00:24:01] Speaker 00:
And they did.

[00:24:02] Speaker 00:
They figured it out.

[00:24:04] Speaker 00:
We proved to the court's satisfaction that Judge Shapiro was not a ditherer, that he was not moving cases back and forth inappropriately between case codes.

[00:24:13] Speaker 00:
All of the things that the agency presumed were the reasons that he was too slow were not true.

[00:24:19] Speaker 00:
What we proved was that he was engaging in a diligent effort to develop the record

[00:24:23] Speaker 00:
and the agency has never said that any of these efforts were inappropriate or that they took too long or that he was too slow.

[00:24:29] Speaker 00:
The second ask issue about asking for more cases, that he could have asked for more cases, that clearly is not supported by this record.

[00:24:37] Speaker 00:
He was not allowed to ask for more cases.

[00:24:39] Speaker 00:
In fact, the agency's counseling sessions, they specifically took cases away from him.

[00:24:44] Speaker 00:
In fact, they took cases away from him at the end of the processes

[00:24:47] Speaker 00:
so that a case that he should have been able to keep and come to disposition within a fairly short period of time, those cases were taken away from him and those stats were given to someone else.

[00:24:56] Speaker 00:
And that's the whole point of the Goodman analysis.

[00:24:59] Speaker 00:
He did not have the same number of cases to work from and the same spread of easy to difficult cases.

[00:25:05] Speaker 00:
With respect to the charge, it is our position that Judge Smith impermissibly rewrote the charges.

[00:25:11] Speaker 00:
We are not talking about a technical interpretation here.

[00:25:14] Speaker 00:
The agency said that an administrative law judge is required to deliver decisions and hearings as soon as possible in a timely manner.

[00:25:23] Speaker 00:
That's the only thing that he was required to do.

[00:25:26] Speaker 00:
They said that the hearing office was supposed to provide timely decisions and hearings.

[00:25:30] Speaker 00:
You have to write that out of this complaint.

[00:25:32] Speaker 00:
You have to completely take those out.

[00:25:35] Speaker 00:
Likewise, Judge Cristado, who is the founder of the benchmarks that are the basis of the agency's position, didn't say people need to provide more cases.

[00:25:45] Speaker 00:
He said, you need to move more quickly.

[00:25:47] Speaker 00:
The whole point of it was that the cases were taking too long to process, and we proved that Judge Shapiro was not engaging in inappropriate slowness in the processing of his cases.

[00:26:00] Speaker 00:
Thank you.

[00:26:01] Speaker 03:
Thank you, Ms.

[00:26:02] Speaker 03:
Brownell.

[00:26:02] Speaker 03:
We'll take the case under review.